Carrère and the great judges from Vienne – a tribute

This has been my “semaine blanche”, so I will not be posting about judgments or anything close to it. On the contrary, this post is about a novel, a beautiful non-fictional novel written by Emmanuel Carrère, one of the leading French living authors, whose unclassifiable but superb works I have been following for some time. This week I finished D’autres vies que la mienne (English translation available, by the way) a non-fictional novel about life, death, love, courage and, surprise surprise, preliminary references to the Court of Justice.

D’autres vies que la mienne deals with the real story of two French first-instance judges in the town of Vienne, two survivors of teenage cancer, both of them wounded and deeply scarred. The reader knows from the very beginning that one of them died of cancer at the age of 31, shortly after the main events of the book take place. So it is not light nor happy reading.

What is interesting about the book is that Carrère manages to tell in a very intimate and subtle way the inside story of a very public affair: the battle of two judges against a restrictive case-law of the French Cour de cassation concerning the scrutiny of abusive clauses in consumer contracts. In fact, these were the judges who made the preliminary reference in the case of Cofidis, following the wake of the Court’s decision in Océano Grupo. These judgments of the Court eventually gave rise to Aziz and the avalanche of Spanish cases concerning home evictions that have transformed Spanish mortgage law during the economic crisis. Hundreds of thousands of consumers have benefited throughout the EU of the references made to Luxembourg by these first-instance judges.

In a beautiful scene of the book, shortly after the funeral of the deceased judge, the family (including Carrère) visit the surviving judge at his house, where he explains to them their fight against the entire consumer credit establishment in France at the time. At a point, he tells the family, speaking of himself and his dead colleague: “we were great judges, we really were”. And he truly believed it, but mostly because thanks to them, thanks to their unconventional way of reasoning, they convinced the Court of Justice to prove them right.

When we read judgments in preliminary references we usually check who the plaintiff or the defendant are. We might even take a look at who the reporting judge is. However, we hardly think of the judge or judges who made the reference: how did they come to that determination, or how hard did they have to fight to make that decision? We are not always aware, but sometimes those judges have to pick a fight before they make those references, and D’autres vies que la mienne explains us how and why in a beautiful yet tragic way. The protagonists thought they were “great judges” for making those references. And they definitely were. Like all the many others judges that keep making references against all odds, disturbing the sacred peace of the national judicial establishment. Thanks to them, EU Law is a formidable instrument, incomparable to any other legal system. Great judges indeed.

P.S.-This post was published shortly before the terrorist attacks of Paris on 13 November 2015. In a tragic way, this modest tribute of mine to France, to its Republic, to its values, to its culture and to its peoples, is now, sadly, more necessary than ever.

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